Bars Zoned Out of Business Cannot Rely on Prior Special Exception

Bars Zoned Out of Business Cannot Rely on Prior Special Exception

Two businesses (Bar Norfolk and Have a Nice Day Cafe) were operating as restaurant/bars in Hampton Roads, Virginia.  They had been operating under a blanket special exception to the zoning ordinance.  After some ABC violations, the City later revoked the blanket special exception and required all affected businesses get their own special exceptions, if they could.  The bars tried, failed, and then claimed that they had a vested right in the prior zoning.

However, the Supreme Court of Virginia held that the businesses could not claim vested rights under Code § 15.2-2307 to a land use that was impermissible under the applicable zoning ordinance when they opened for business.  No city official issued a determination under Code § 15.2-2311(C) authorizing use of these business premises in a manner not otherwise permitted under the zoning ordinances.

Because the two businesses had notice of and an opportunity to be heard during the city council meeting when their applications for individual special use exceptions were considered and denied, any statutory notice issues were waived under Code § 15.2-2204 and their procedural due process rights were not violated.

The circuit court’s judgments denying declaratory and injunctive relief to the businesses, holding that the city acted lawfully in revoking the blanket special exception and in denying the businesses’ applications for individual special exceptions, upholding the determination that the businesses possessed no vested rights, and granting the city’s request for injunctive relief, were affirmed.

The case is Norfolk 102, LLC v. City of Norfolk, No. 120634 (February 28, 2013)

Albo & Oblon are ABC lawyers, whose attorneys handle most aspects of alcohol licensing and permitting in Virginia.

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